Eberhardt v. Coyne

Britt, C. Ejectment for a piece of land about eighty feet long and four feet wide in a certain block in the city of Sacramento. It is admitted that plaintiff has the paper title to the “west thirty-two feet” of lot 2 in said block, and that she has paid the taxes thereon since the year 1871; also that defendant has like title to the south half of lot 1 in the same block, and that he and his predecessors in interest have paid the taxes thereon since that year. The west line of plaintiff’s land and the east line of defendant’s are coincident for the length of the parcel in dispute, which lies along such common boundary. In her complaint, filed December 23,1892, plaintiff alleged herself to be the owner of the demanded premises, [285]describing the same by reference to monuments, courses, and distances; that she and those under whom she claims have been in the adverse possession thereof, claiming title, for more than twenty years, and until she was ousted by defendant in December, 1892; that by reason of such possession “the plaintiff became and is the owner of said premises by prescription.” These allegations, excepting that of ouster, were denied by defendant. At the trial defendant produced evidence tending to show that the .land sued for is within the boundaries of the south half of said lot one. The court found that plaintiff was, at the time of the commencement of the action, “and for many years prior thereto,” the owner of the premises described as “commencing at the north end of a fence constructed by the defendant on lot 2,” etc., the line of such fence being the east boundary of the parcel described, and no further reference being made to the lines of either loti or lot 2; also that plaintiff was in the adverse possession of such premises for ten years next before the entry of defendant in December, 1892.

The complaint proceeds and the trial was had, apparently, on the theory that plaintiff’s right to the land depends upon adverse possession thereof for the prescriptive period of five years. Since the amendment to section 325 of the Code of Civil Procedure, which took effect May 31,1878, the payment of the taxes by the adverse holder, if any are assessed against the land, is a necessary element in the establishment of title by means of adverse possession. ' The finding here has no relation to the time before May 31, 1878, when payment of taxes was not required in order to make out such possession, for it is limited to the space of ten years next before defendant’s entry; and as to such period of ten years it is not sustained by the evidence, for the admission at the trial was that the taxes paid by plaintiff have been those assessed upon the “ west thirty-two feet of said lot 2”; this was not effectual to complete the prescriptive right to land not included within that designation. (McDonald v. Drew, 97 Cal. 266; Baldwin v. Temple, 101 Cal.